USDC E.D. California, January 6, 2010
- Court dismisses plaintiff Chuck Yeager’s right of privacy claims as time barred by the statute of limitations, holding that single publication rule applies to defendants’ website that advertised plaintiffs’ aviation memorabilia and featured Yeager’s name and likeness, and held that revisions to defendants’ website constituted republication for purposes of applying the single publication rule.
Retired General Charles “Chuck” Yeager, a well-known figure in American aviation history, entered into an arrangement with defendants Connie and Ed Bowlin, retired Delta captains who run an aviation memorabilia company and website, to sell some of Yeager’s personal collection and to promote certain events featuring Yeager and artworks signed by Yeager. After one such event, the parties disputed how many signed prints Yeager was entitled to keep, and Yeager and his wife Victoria Yeager asked defendants several times to return all of Yeager’s collection and to remove reference to Yeager on defendants’ website.
Yeager and his foundation eventually filed suit for, inter alia, violation of California’s statutory right of publicity and the common law right of privacy/right to control publicity and likeness (the “privacy claims”), and false endorsement under the Lanham Act . Defendants moved for summary judgment, arguing that plaintiffs’ right of privacy and Lanham Act claims were barred by the statute of limitations, based on the single publication rule. The single publication rule provides that “[n]o person shall have more than one cause of action for damages for . . . invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.” Cal. Civ. Code § 3425.3.
The statute of limitations for violations of the right of privacy is two years and the statute of limitations for plaintiffs’ Lanham Act claim is either the two-year statute applicable to right of privacy claims, or the three-year statute applicable to fraud claims. Plaintiffs’ right of privacy claims are based on statements on the defendants’ website which, the court noted, has been in existence since 2000. Citing Traditional Cat Ass’n, Inc. v. Gilbreath, 118 Cal. App. 4th 392 (2004), the court stated that the single publication rule has been held to apply to statements published on the Internet, and, citing Christoff v. Nestle USA, Inc., 47 Cal. 4th 468 (2009), held that defendants’ website is a “single integrated publication” for marketing aviation memorabilia and providing aviation related news and information, and “accordingly is protected by the single publication rule.”
Plaintiffs contended that the single publication rule does not apply in this case because the rule does not apply when a defendant engages in ongoing sales of a product for commercial gain, because each sale of a product that referenced Yeager restarted the statute of limitations. In support of this contention, plaintiffs relied on Miller v. Collectors Universe, in which an authenticator’s name was used without his consent on 14,000 separate certificates of authenticity. 159 Cal. App. 4th 988 (2008). In rejecting plaintiffs’ argument, the court stated that Miller held that each certificate was intended for a different consumer in connection with different products and therefore was not an “identical communication or display of identical content to multiple persons” protected by the singe publication rule. The court distinguished the case before it by stating that defendants’ website did not display different individualized content to different consumers, but rather displayed an identical set of content to all viewers of its website. The court also noted that California courts have explicitly found that the repeated sale of identical products is subject to the single publication rule.
Regarding republication, the court said that the single publication rule may not be available when a defendant republishes information, and that defendants admitted they revised their website in 2003 which would constitute a republication of the statements giving rise to plaintiffs’ claims and would restart the statute of limitations. However, since plaintiffs did not file suit until 2008, the court held that plaintiffs’ right of privacy claims are nonetheless time barred. Finally, the court stated that even if the single publication rule did not apply, plaintiffs’ privacy based claims are still time barred because plaintiffs had actual notice of the alleged right of privacy violations in August 2005, when plaintiffs’ attorney sent a cease and desist letter to defendants and threatened litigation over the very same issues before the court. The court also held that plaintiffs’ claims for violation of the Lanham Act, breach of oral contract, unjust enrichment and fraud were barred by the statute of limitations, and the court rejected plaintiffs’ argument for equitable tolling. Plaintiffs’ remaining claims were dismissed on various grounds.